Often, as these political debates are raging on social media,
you'll come across a comment that suggests the Australian
Constitution protects citizens' rights, and the government is
simply failing to uphold them.

But the fact is this isn't the case. It's rather an idea
popularised by the heavy cultural saturation the US media has had
upon Australia in recent years.
Since 1791, the United States has had a bill of rights which
protects the freedoms of its citizens, and is enshrined in The US
constitution and the amendments to that document.

By contrast, this nation's founding document does not
contain a bill of rights, and only provides protection for a
handful of freedoms. And unlike all other western democracies,
Australia is the only such country without a human rights act to
provide individuals with freedoms and legal safeguards.

This means government can pass laws without considering whether
they infringe upon citizens' rights; without worrying about
legal consequences. And this is what's been happening for many
years now.

Threadbare protections

Amongst the lawmakers that drafted the Australian Constitution,
there was debate over whether a bill of rights should be contained
in the document. But when it was put to the vote, the proposal lost
out with
19 votes for and 23 against.

As noted by the Queensland chapter of the Young Presidents
Association in 1997, the reason it didn't fly was
because of fears that rights protections would undermine a
number of discriminatory laws that were in place at the time, which
primarily disadvantaged First Nations people and Chinese
residents.

So what was left was just
five rights which are explicitly guaranteed by our
Constitution.
Section 41 provides of the document guarantees the right to
vote. The protection of property against acquisition on unjust
terms is protected by
subsection 51(xxxi) of the document.

The right to a trial by jury is contained in
section 80; but it should be noted that over the years, the
courts have found that this right only extends to trial by
indictment; in other words, trials in the higher courts such as the
District and Supreme Courts. Freedom of religion is protected under
section 116 of the document, while
section 117 prohibits discrimination based on state of
residency.

Checking in with authorities

Former NSW Council of Civil
Liberties president Stephen Blanks
told Sydney Criminal Lawyers in 2017 that "one of the
problems with the Australian legal system now is that if
people's human rights are infringed" the only recourse is
to "make a complaint to the Australian Human Rights
Commission".

Mr Blanks advocates for the establishment of a federal human
rights act. He sees this an interim measure, prior to the amendment
of the Constitution, so that it incorporates a rights protection
bill within it. Amending the US Constitution is what happened with
the bill of rights over there.

Constitutional law expert UNSW Scientia Professor George
Williams explained
in November 2017 that the need for Australian human rights
protections has become more urgent since the government set about
passing multiple rights eroding national security bills
post-9/11.

The professor explained that compared to nations with rights
protections – such as the US and the UK – Australia has
passed a much greater volume of national security-counterterrorism
laws that "go further". And the number of these sorts of
bills that have been passed at the federal is up around 80.

At the moment, the
Australian Bill of Rights Bill 2019 is sitting before federal
parliament. It was introduced by federal MP Andrew Wilkie. And
it's the second such rights protection bill the independent
member has tabled over the past few years.

"The value of a bill of rights has become more important,
because of the increasing power of the state," Mr Wilkie
said in 2017, just after he introduced the first bill.
"And many people feel that their rights have been eroded on
account of laws that have been passed by a range of
governments."]

A case in point

Concerns have long been raised around
NSW consorting laws that were passed in 2012. This occurred
initially as they were introduced, as well
as a few years later when NSW Greens MLC David Shoebridge
released statistics that revealed the biased way in which these
laws had been applied.

Section 93X of the Crimes Act 1900 (NSW) makes it an offence
for an individual to communicate with at least two convicted
criminals, after they've been warned not to by police. And an
offender doesn't have to have fallen short of the law in the
past, and they can be sent away for up to 3 years.

In 2014, three men who'd been charged under these laws
challenged their validity in the High Court, arguing that they
impinged upon the implied right of association in the Constitution.
However, the court
dismissed the appeal, as it found that no such right exists
under Australia's federal law.

What is Morrison up to?

"So long as the agenda is driven by people whose interest
is primarily power, rather than the public good," Blanks
explained, "it's very difficult to get a coalition in
favour of human rights legislation." Indeed, the current
federal system sees rights eroding bills swept through
with bipartisan support.

And at present, we've got a prime minister who's trying
to ram through legislation that aims to uphold one right over all
others. And this is one of the few rights that's already
provided protection under the Constitution: the right to freedom of
religion.

And while many are confused as to why our PM is prioritising
religion at this point in time, one thing is certain, and that is
there's no federal legislation guaranteeing citizens'
rights that this bill can be weighed up against to see if it
infringes upon the rights of minorities, as it certainly does.

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